Citation Nr: 1431685
Decision Date: 07/15/14 Archive Date: 07/22/14
DOCKET NO. 11-20 605 ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Saginaw, Michigan
THE ISSUE
Entitlement to payment or reimbursement of unauthorized medical expenses incurred at a non-VA medical facility from January 22, 2010, to January 27, 2010.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Nicole L. Northcutt, Counsel
INTRODUCTION
The Veteran, who is the appellant, served on active duty from October 1974 to April 1978.
This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2011 decision of the Department of Veterans Affairs (VA) Medical Center (VAMC) in Saginaw, Michigan.
FINDING OF FACT
The claim for payment or reimbursement for medical expenses incurred from January 22, 2010, to January 27, 2010 was beyond the initial emergency evaluation, and the Veteran's condition did not preclude transfer to a VA medical facility; rather, the Veteran was expressly declined such a transfer on January 22, 2010.
CONCLUSION OF LAW
The criteria for payment or reimbursement of unauthorized medical expenses for in-patient care at a non-VA facility from January 22, 2010, to January 27, 2010, have not been met. 38 U.S.C.A. § 1728 (West 2002); 38 C.F.R. § 17.120 (2013).
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.
The VCAA notice requirements apply to the elements needed to substantiate a claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
On a claim for payment or reimbursement of unauthorized medical expenses, information or evidence to substantiate the claim are documentary evidence establishing the amount paid or owed, an explanation of the circumstances necessitating the non-VA medical treatment, and other evidence or statements that are deemed necessary and requested for adjudication of the claim. 38 C.F.R. § 17.124.
In March 2011 and in May 2011, the RO provided post-adjudication VCAA notice by letters, which substantially complied with Dingess and the specific provisions of 38 C.F.R. § 17.124.
As the VCAA notice came after the initial adjudication, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The procedural defect was cured as after the RO provided content-complying VCAA notice the claim was readjudicated, as evidenced by the statement of the case in June 2011. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (timing error cured by adequate VCAA notice and subsequent readjudication without resorting to prejudicial error analysis.).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.
The VA has obtained medical expense records and VA records. As there are no additional records to obtain, no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.
REASONS AND BASES FOR FINDING AND CONCLUSION
Legal Criteria
Pursuant to 38 U.S.C.A. § 1728 and 38 C.F.R. § 17.120, payment or reimbursement of the expenses of emergency treatment, not previously authorized, in a private or public hospital not operated by the Department of Veterans Affairs, will be paid on the basis of a claim timely filed, under the following circumstances:
1). The emergency treatment was not previously authorized and rendered to a Veteran in need of such emergency treatment for any disability of a Veteran who has a total disability permanent in nature resulting from a service-connected disability;
2). Emergency treatment was rendered in a medical emergency of such nature that a prudent layperson would have reasonably expected that delay in seeking immediate medical attention would have been hazardous to life or health. This standard is met by an emergency medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) that a prudent layperson who possesses an average knowledge of health and medicine could reasonably expect the absence of immediate medical attention to result in placing the health of the individual in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part; and,
3). VA or other Federal facilities that VA has an agreement with to furnish health care services for veterans were not feasibly available, and an attempt to use them beforehand or obtain prior VA authorization for the services required would not have been reasonable, sound, wise, or practicable, or treatment had been or would have been refused.
VA will not approve claims for payment or reimbursement of the costs of emergency treatment not previously authorized for any period beyond the date on which the medical emergency ended. For this purpose, VA considers that an emergency ends when the designated VA clinician at the VA facility has determined that, based on sound medical judgment, the veteran who received emergency treatment: (1) Could have been transferred from the non-VA facility to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment, or (2) Could have reported to a VA medical center (or other Federal facility that VA has an agreement with to furnish health care services for veterans) for continuation of treatment. (b) Continued non-emergency treatment.
Claims for payment or reimbursement of the costs of emergency treatment not previously authorized may only be approved for continued, nonemergency treatment, if: (1) The non-VA facility notified VA at the time the veteran could be safely transferred to a VA facility (or other Federal facility that VA has an agreement with to furnish health care services for veterans), and the transfer of the veteran was not accepted; and (2) The non-VA facility made and documented reasonable attempts to request transfer of the veteran to a VA facility (or to another Federal facility that VA has an agreement with to furnish health care services for veterans), which means the non-VA facility contacted either the VA Transfer Coordinator, Administrative Officer of the Day, or designated staff responsible for accepting transfer of patients, at a local VA (or other Federal facility) and documented such contact in the veteran's progress/physicians' notes, discharge summary, or other applicable medical record.
Analysis
The Veteran, who is totally and permanently disabled due to service-connected disabilities, was transported to a private emergency care facility on January 21, 2010, following an episode of unresponsiveness.
A VA healthcare administrative note created on January 22, 2010, shows that a VA medical professional spoke to the private emergent care physician who was treating the Veteran. Based on the medical data provided to the VA medical professional, the Veteran was stable, however, when offered a transfer to the VA medical facility, the Veteran declined, stating that he wished to remain at the private facility under his own means.
The Veteran has subsequently asserted that he does not remember the days following his in-patient admission on January 21, 2010, essentially contending that he does not remember declining a transfer to a VA facility, but he does not dispute that he did in fact decline the transfer to an available VA facility.
The Veteran is not eligible for payment or reimbursement of the private medical expenses incurred from January 22, 2010, on which date he was deemed clinically stable so as to allow his transfer to a VA facility, to January 27, 2010, the date of his discharge from in-patient treatment, for continued non-emergency treatment, because he refused to be transferred to an available VA facility. VA will make payment or reimbursement only for the expenses related to the initial evaluation and the emergency treatment furnished to the Veteran up to the point of refusal of transfer by the Veteran. 38 C.F.R. § 17.121.
As the preponderance of the evidence is against the claim for payment or reimbursement of the expenses for in-patient care from January 22, 2010, to January 27, 2010, there is no doubt to be resolved.
ORDER
Payment or reimbursement of unauthorized medical expenses incurred at a non-VA medical facility from January 22, 2010, to January 27, 2010, is denied.
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George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs